RE MANIBOY WYLLENN MONTERO

CACV 240/2018

[2019] HKCA 48

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 240 OF 2018

(ON APPEAL FROM HCAL 1067/2017)

---------------------------------------------

---------------------------------------------

___________________

J U D G M E N T

___________________

Hon Barma JA (giving the Judgment of the Court):

1.  On 18 October 2018, this court (Yeung VP and Barma JA) handed down a judgment dismissing the applicant’s appeal against the decision of Deputy High Court Judge Bruno Chan (“the judge”) on 15 June 2018 refusing leave to the applicant to apply for judicial review. The applicant had sought to review the decision of the Torture Claims Appeal Board (“the Board”) dismissing her appeal from the decision of the Director of Immigration rejecting her non‑refoulement claim.

2.  The facts and issues in the appeal, as well as the court’s reasons for dismissing it, are set out in our judgment.[1]  We will not repeat them here.

3.  The applicant subsequently applied, by a notice of motion dated 1 November 2018, for leave to appeal to the Court of Final Appeal.  The applicant stated in her notice of motion that:

(1)  the applicant’s claim under persecution risk should not be dismissed merely because the situation giving rise to her claim was found to be a private matter; and

(2)  there is no reason why she could not have legal representation for BOR 2 risk while other claimants are entitled to such representation without even asking for it.

4.  In compliance with the directions of the court, the applicant lodged a written submission in support of her application on 15 November 2018.  In her written submission, the applicant reiterated the matters raised in the notice of motion.

5.  Having considered the applicant’s notice of motion and written submission, we see no reason to depart from the usual practice of determining an application of this kind on the papers.  We have, therefore, determined the applicant’s application on the basis of her notice of motion and written submission.

6.  The matters stated by the applicant in her notice of motion do not constitute grounds for granting leave to the Court of Final Appeal.  The applicant has failed to identify any question of great general or public importance for the Court of Final Appeal to determine, as required by section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap 484.  Nor is any such question apparent to us from the matters she has raised in her notice of motion and written submission.  We have dealt with the issue of legal representation at [9] of our judgment and we have found nothing amiss. 

7.  As for the ground related to persecution risk, we note that, hitherto, the applicant has not raised this ground in the notice of appeal.  As we have explained before, it is not the practice of the Court of Appeal to grant leave to appeal on new points that were not canvassed in the hearing before it;[2] nor generally is it the practice of the Court of Final Appeal to grant leave on new fact-sensitive points not argued in the Court of Appeal.[3]  We would therefore not allow the applicant to rely on this ground.

8.  We also do not see any basis for granting leave on the “otherwise” limb under section 22(1)(b).

9.  For these reasons, the notice of motion dated 1 November 2018 is dismissed.